The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Tuesday, 10 October 2017

Brexit - Theresa May's statement to Parliament 9th October

Mrs May emphasised that the government wishes to secure "a new,
deep and special partnership with the European Union which spans both a
new economic relationship and a new security relationship" but the UK will not be part of the EU single market or customs union. Also, the idea is rejected of "something based on European Economic
Area membership." Instead, the UK is seeking "a unique and ambitious economic partnership" which will "reflect our unprecedented position of starting with the same
rules and regulations." The UK will maintain its "unequivocal commitment to
free trade and high standards."

Mrs May then referred to needing a "framework to manage
where we continue to align and where we choose to differ." It is not particularly clear what type of framework is envisaged and neither is it clear whether the British government is willing to accept the Court of Justice of the EU as part of such a mechanism for, at least, a period of transition. It is highly unlikely that the EU would agree to excluding the Court's jurisdiction entirely in the event that legal issues arise between the UK and EU. See The Guardian - MPs angry as Theresa May accepts continuing role of EU court.

Mrs May went on to propose "a bold new strategic agreement that provides a
comprehensive framework for future security, law enforcement and
criminal justice co-operation: a treaty between the UK and the EU." Inevitably, any such treaty would require a mechanism to resolve any disputes.

Regarding implementation, Mrs May repeated what she had said at Florence. There should be a strictly time-limited (probably 2 year) period of implementation during which the UK "will have left the EU
and its institutions" but, during this period, there would be access to one another’s markets" on current terms and Britain would also continue to take part in existing security measures. For this period of time, the framework would be "the existing structure of EU rules and regulations." Again, Mrs May was not specific in her statement about what involvement, if any, the CJEU might have but "existing structure of EU rules and regulations" may well include the court.

During the debate which followed, this prompted Mr Jacob Rees-Mogg MP to ask - "Will my right hon. Friend confirm unequivocally that
after 29 March 2019 the European Court of Justice’s writ will no longer
run in any way in this country and that any new laws agreed under the
acquis communautaire after that date will not have effect here unless
agreed specifically by Parliament?" Mrs May replied - "As I have just said in answer to a number of questions, we
want to have a smooth and orderly process of withdrawal with minimum
disruption. That is why we want the implementation period. We will have
to negotiate what will operate during the implementation period. Yes,
that may mean that we start off with the ECJ still governing the rules
we are part of for that period, but we are also clear that we can bring
forward discussions and agreements on issues such as a dispute
resolution mechanism. If we can bring that forward at an earlier stage,
we would wish to do so ...."

During the implementation period, there would be a registration system for those coming to live and work in the UK. Mrs May said, "On citizens’ rights, as I have said many times this government
greatly values the contributions of all EU citizens who have made their
lives in our country. We want them to stay. In Florence, I gave further commitments that the rights of EU
citizens in the UK - and UK citizens in the EU - will not diverge over
time, committing to incorporate our agreement on citizens’ rights fully
into UK law and making sure the UK courts can refer directly to it. Since Florence there has been more progress including reaching
agreement on reciprocal healthcare and pensions, and encouraging further
alignment on a range of important social security rights. So I hope our negotiating teams can now reach full agreement quickly."

On Northern Ireland, drafting is in progress of joint principles for preserving the Common Travel Area and associated rights. Physical infrastructure at
the border is to be avoided.

At the moment, the EU financial demands are a serious sticking point but the UK "would want to make a contribution to cover our fair share of the costs
involved." We know that the UK negotiators presented legal argument to the EU regarding the financial demands but we have not be allowed to see this argument. This is a pity given the immense expertise available on EU law within the British legal professions and universities. Exposure of the argument ought to help to improve it.

Two White Papers have been published on trade and customs. and HERE. "These pave the way for legislation to allow the UK to operate as an
independent trading nation and to create an innovative customs system
that will help us achieve the greatest possible tariff and barrier-free
trade as we leave the EU."

As Mrs May's statement concluded she said, "And while I believe it is profoundly in all our interests for the
negotiations to succeed, it is also our responsibility as a government
to prepare for every eventuality. So that is exactly what we are doing."

This suggests that the government is planning for a "no deal" situation should that arise. Obviously, to fail to undertake such planning would be a gross dereliction of the duty of government. No details of those plans were revealed.

The Hansard record (link above) contains a short exchange between Mr Ben Bradshaw (MP for Exeter).

Q: "Is it the Prime Minister’s understanding that, if necessary, it is possible to halt the article 50 process?"

A: "The position was made clear in a case that went
through the Supreme Court in relation to article 50. The Government have
made it clear that we have no intention of revoking that. We will be
delivering on the vote of the British people."

This reference by Mrs May to the Miller and Dos Santos litigation is not entirely accurate because there was a position agreed between the parties that the UK could neither revoke an Article 50 notice unilaterally nor could it give a conditional notice to the EU. Hence, the Supreme Court did not make any decision about whether notice could be revoked.

As a matter of law, the precise situation regarding unilateral
revocability of the Art 50 notice has not been decided and, as it is a
question of EU law, only the CJEU could decide it.

Other MPs - notably Helen Goodman and Tulip Siddiq - obtained from
the Prime Minister a recognition of the correct position regarding the Supreme Court's decision but Mrs
May made it clear that the Article 50 notice was not going to be
revoked.

The Bingham Centre for the Rule of Law has put together a high-powered
group of 26 legal, constitutional and other experts under the
chairmanship of former Attorney General Dominic Grieve QC MP to consider
the implications of the EU (Withdrawal) Bill for the rule of law. See details of this HERE